Judge Torches Federal Prosecutors For Flipping A Defendant And Using Him To Spy On Defense Team

It’s no surprise the government cheats when it prosecutes people. Judge Jed Rakoff pointed this out while resigning from the DOJ’s Forensic Science Committee when it became clear the DOJ was not interested in rooting out junk science. He called the government’s refusal to allow defendants to examine forensic means and methods “trial by ambush.”

Judge Kozinski called out federal prosecutors in one of his opinions, noting the “epidemic of Brady violations” being committed by those supposedly on the justice side of the justice system. From what Kozinski had observed, the government routinely put its finger on the scales of justice by withholding exculpatory evidence from criminal defendants.

Now, there’s this, via the Justice Building blog: a federal judge raking prosecutors over the coals trying to secure a win with flagrant cheating.

The order [PDF] granting a new trial is jaw dropping. While cheating is commonplace, it’s rarely been this thoroughly exposed.

The backstory is this: four defendants were notified they were targets of a fraud investigation involving allegedly bogus sweepstakes. The four targets hired lawyers and signed a Joint Defense Agreement that gave the four defendants access to all defense information. If any of the defendants decided to strike out on their own, they needed to give advance notice and return any shared information obtained from other defendants and their lawyers.

Nearly a year after they were indicted, and following several joint defense meetings, the other three defendants learned a superseding indictment with a lesser charge had been filed against John Leon. They also learned Leon had signed a plea agreement and was cooperating with the government. However, none of this was learned from Leon directly, who had attended meetings with the government and shared privileged information he had obtained from the joint defense meetings.

The remaining defendants filed a motion to dismiss their indictments based on the government’s surreptitious, second-hand surveillance of their defense efforts. The federal prosecutors arrived in court to fight this motion, claiming they had no idea their informant had actually been spying on his fellow defendants and their defense team.

The Government was represented by Assistant U.S. Attorneys H. Ron Davidson and Elijah Levitt. At that hearing, the Government disclosed that it began discussing with Leon the possibility of his cooperation on January 20, 2016. Leon signed the plea agreement on February 17, 2016, during a meeting with the Government (the “February Debrief”). The hearing further revealed that Leon met with the Government and was debriefed on at least one occasion. While meeting with the Government and providing information pursuant to his plea agreement, Leon and his attorney, Omar Guerra Johansson (“Johansson”), continued to meet with Pisoni, Pradel, Ramirez, and their lawyers, acting as if Leon was still part of the JDA. During those meetings, confidential information was discussed by the defendants and their attorneys. In its pleadings and at the evidentiary hearing, the Government repeatedly told the Court that it did not know about the meetings that Leon continued to have with his co-defendants and their lawyers and that the Government did not receive any privileged material.

The court didn’t necessarily buy this version of the events, but decided dismissal was too extreme a remedy because the government had independent sources for much of the privileged information it had gathered from Leon.

The defendants fought back, demanding access to evidence supporting the government’s assertions it was unaware Leon was passing on privileged information to prosecutors. The court ordered the government to produce this information. Meanwhile, the three defendants were convicted during a jury trial and sentenced.

With all of this out of the way, the government suddenly changed its story. A post-conviction review apparently carried out by the participating AUSAs’ (Assistant US Attorney) superiors uncovered evidence contradicting the AUSAs’ original statements to the court.

In this first of what would be several disclosures, the Government revealed that contrary to the testimony and arguments it previously made to the Court, the Government had, in fact, obtained written documents from Leon during the February Debrief, including handwritten notes and the “Timeline” discussed at the
evidentiary hearing.

The trickle became a waterfall.

Shortly thereafter, the U.S. Attorney’s office removed AUSAs Davidson and Levitt from the case, and new Government counsel took over. These new prosecutors made additional significant disclosures, including the following: (1) a February 22-23, 2016 email chain between the prosecution team in which AUSA Levitt referenced a document provided by Leon to the Government at the February Debrief and stated that “the document was prepared in a private setting as an outline to cover their joint defense and contains information that Mr. Leon would not have had but for Mr. Pradel’s assistance[,]” to which Agent Burnham responded that “[w]e can make sure that Leon communicates to us verbally everything of importance[,]”; and (2) statements from Leon and Johansson to the OPR investigators that the Government, specifically Agent Masmela and AUSA Davidson, was aware of several defense meetings that Leon secretly attended and that Leon’s attendance was approved by the Government in advance. These disclosures revealed that the Government knowingly provided materially inaccurate information to the Court during the pretrial proceedings

Jesus. This is the government flipping a defendant and using him to completely undermine the defense of the other defendants. This is ethically and morally wrong. And the involved AUSAs not only encouraged it, they pretty much engaged in parallel construction to launder the illicitly obtained information. And they engaged in their own conspiracy to subvert any reasonable definition of “justice” to hopefully score an easy win.

Then, when confronted, they lied to the court.

These documents revealed that the prosecution team knew that Leon was providing them with information he received from the other defendants and their lawyers; that AUSA Davidson and Agent Masmela personally approved each of Leon’s meetings with his co-defendants and their lawyers despite the JDA, even though Davidson told the Court otherwise; that the prosecutors were fully aware of, and openly discussed, the existence of the JDA before they argued to the Court that they did not know of its existence; that the Government knowingly received and had in its possession the written Timeline and a set of handwritten notes from Leon containing joint defense information; and that the prosecution team had multiple communications about these documents in the months leading up to the hearings, yet testified and argued to the Court that they had nothing.

The court paraphrases the government’s attempts to mislead the judge about its malfeasance, each time landing a solid blow.

During the pretrial proceedings, the Government repeatedly told the Court that its actions were not improper because it did not know of any meetings other than the first, and that it followed a policy of deliberately failing to learn whether Leon was meeting with the others.

Just lie after lie.

These assertions were knowingly false when made.

And more lies, now spreading further than this courtroom.

The unfortunate truth is that the prosecution team lied to the Court about Leon’s cooperation in their attempt to avoid dismissal of the Indictment and their disqualification. And this deception was not limited to the Court. AUSA Davidson also misled defense counsel and Government investigators.

AUSA Davidson also tried to throw a fellow employee under the judicial bus when it became clear this just wasn’t going to go away.

At around this time, according to Agent Masmela, AUSA Davidson was “basically trying to do a CYA” and suggested to Masmela that he should write a report taking responsibility for having authorized Leon’s invasions when in fact it was Davidson who had authorized them.

The order goes on to list seven other knowingly false statements made by prosecutors when confronted by the court during the evidentiary hearing. Those lies allowed the other three defendants to proceed towards guilty verdicts while the prosecutors hid evidence of their wrongdoing.

Shockingly, throughout the entirety of the pretrial proceedings, the Government lied to the Court about its possession of privileged materials even though the prosecution team discussed this issue leading up to the motion to dismiss hearings.

New trials, led by new prosecutors are on the way. And, as the court notes in its conclusion, it’s far from assured the government can secure a second win without cheating.

Had the Court been aware of the Government’s knowing receipt of privileged information and the extent of the Government’s purposeful invasion of the defense camp, it would have at least granted the motion to disqualify the prosecution team that tried the case. The Court also finds that the Government’s misconduct had a direct bearing on the jury’s verdict. Notably, the jury only found Pisoni, Pradel, and Ramirez guilty of a single conspiracy count and acquitted them of all remaining counts, including all the substantive counts. No reasonable person could conclude that the Government’s limited victory was not influenced by the privileged information it improperly received. This goes directly to the fairness of the trial and provides reasonable grounds to question the integrity of the proceedings.

Single counts, but each one worth between 78-84 months. That’s 6.5-7 years of freedom that might have been taken away from three different people if the government’s lies and cheating hadn’t been exposed. There’s a good chance the government may decide it’s not even worth running a second trial, given that the first was irreparably tainted and that its evidentiary options will have to steer clear of the privileged information utilized in the first one.

As for the AUSAs? Well, it appears Davidson is still employed by the federal government. The other involved AUSA, Elijah Levitt, apparently retired shortly after this illegal activity was revealed by the court. Somehow, he still feels capable of offering competent legal services.